and County of Denver District Court No. 16CV31561 Honorable
A. Bruce Jones, Judge
& Furman, P.C., Steven M. Furman, Fort Morgan, Colorado,
Cynthia H. Coffman, Attorney General, Theodore A. B. McCombs,
Assistant Attorney General, Denver, Colorado, for
1 In this administrative law case, the Larimer County
Department of Human Services (DHS) made a finding confirming
that plaintiff, Steven Romero, sexually abused his
grandchildren and exposed one grandchild to an injurious
environment, which required Romero to be listed in the
statewide child abuse registry, known as Trails. Romero
appealed DHS's confirmations pursuant to Colorado's
State Administrative Procedure Act (APA). §§
24-4-101 to -204, C.R.S. 2017. An administrative law judge
(ALJ) concluded in an initial decision that the preponderance
of the evidence did not support DHS's confirmation
decisions. DHS appealed, and defendant, Colorado Department
of Human Services (Department), reversed the ALJ's
initial decision, concluding that the evidentiary facts,
including an adverse inference based on Romero's
invocation of his Fifth Amendment right to remain silent,
supported a finding that Romero sexually abused his
2 Romero appealed to the district court, which reversed the
Department's final decision, and the Department now
appeals the district court's judgment. Because we
conclude that the Department properly applied an adverse
inference to Romero's invocation of his Fifth Amendment
rights and did not otherwise err in its final decision, we
reverse the district court's judgment.
Procedural History and Background
3 The following facts and procedural history are taken from
the administrative record in this case.
4 In 2014, L.R. (mother) brought her three-year-old daughter,
K.P., to the doctor for pain and swelling around her vagina.
The medical personnel asked mother if K.P. had been sexually
abused and ran tests for various sexually transmitted
diseases, all of which were negative. Mother asked K.P. the next
day if anyone had touched her in a "bad spot, " and
K.P. answered "Papa, " referring to Romero. K.P.
disclosed that Romero touched her "front butt" with
his hand. And, in a later statement, she stated that Romero
had put his fingers in her "front butt." The record
also includes copies of an anatomically correct drawing where
K.P. pointed to the vaginal area when asked where the
"front butt" was.
5 At the time of K.P.'s disclosure, mother, K.P., and
mother's older child, A.R., lived with Romero and the
children's maternal grandmother, who was also
Romero's common law wife (grandmother). After K.P.'s
disclosure, grandmother alerted mother to Romero's
potential abuse of A.R. Mother reported the potential abuse
of K.P. and A.R. to the Morgan County Department of Human
Services. However, Romero was the director of that office at
the time, so the case was referred to DHS in Larimer County.
DHS began an investigation of the alleged abuse
simultaneously with a criminal investigation by law
6 Both children were forensically interviewed, and A.R. was
interviewed twice. A.R. was very reluctant in his interviews,
and neither interview disclosed improper contact. However, a
month later, A.R. disclosed in therapy, through words and
pictures, that Romero had touched him inappropriately,
focusing on an incident in a swimming pool.
Decision and Romero's Listing in Trails
7 Ultimately, DHS found by a preponderance of the evidence
that Romero had sexually abused K.P. and A.R. Both of these
findings, or "confirmations, " were listed in
8 Romero timely appealed the confirmations to the
Department's Child Abuse/Neglect Dispute Review Section.
The Department referred Romero's appeal to an ALJ.
9 As part of the discovery process for the administrative
appeal, DHS deposed Romero. Romero was represented by counsel
and answered a few questions about his education and
background, but he invoked his Fifth Amendment right to
remain silent on the advice of his attorney for the remainder
of the deposition. The questions bore heavily on whether
Romero sexually abused his grandchildren, including such
direct questions as whether Romero touched K.P. and A.R. in
intimate areas and whether those touches were for
Romero's sexual gratification. It is clear from the
deposition transcript that Romero invoked the Fifth Amendment
to protect himself in the ongoing criminal investigation into
A.R.'s and K.P.'s allegations of sexual
Hearing and Initial Decision
10 At the hearing, the ALJ heard testimony from mother;
grandmother; the medical personnel who initially treated
K.P.; the children's therapist, Cassie Potts; and a
clinical and forensic psychologist, Dr. Richard Spiegle. Dr.
Spiegle was the only witness called by Romero; Romero did not
otherwise present evidence disputing DHS's proffered
11 The forensic interviews as well as the transcript of
Romero's deposition were admitted into evidence at the
hearing. During closing arguments, DHS requested that the ALJ
make an adverse inference regarding the questions that Romero
declined to answer based on his invocation of the Fifth
12 The ALJ made numerous findings of evidentiary fact and
reversed DHS's confirmations as to the ultimate
conclusion that Romero was responsible for sexual abuse of
13 Because the Department and this court must defer to the
ALJ's findings of evidentiary or historical fact, we
detail those findings here.
• Romero is the grandfather of K.P. and A.R.
• A.R. was living with Romero and grandmother, and
Romero was A.R.'s legal guardian.
• A.R. had been suffering from encopresis since sometime in
• At the time of the allegations, K.P. and mother were
also living with Romero and grandmother.
• While A.R. and K.P. were living under Romero's
roof, they often slept in the same bed with Romero.
• Mother took K.P. to see a pediatrician because of a
bumpy rash on her inner thighs and pain and swelling in her
• The doctor and nurse practitioner who treated K.P.
asked mother if K.P. had been sexually abused and ran tests
to determine if K.P. had a sexually transmitted disease.
However, no cause for the rash or swelling was ever
• The doctor testified that K.P. was more scared or
worried by the doctor's examination of her groin than is
typical for a child of her age.
• Grandmother alerted mother to Romero's potential
abuse of A.R., centered on an incident in a swimming pool.
• K.P. stated that Romero touched her "front
butt" and put his fingers in her "front butt,
" but K.P.'s forensic interview was inconclusive.
• A.R.'s first forensic interview did not disclose
any inappropriate touching.
• After the first forensic interview, A.R. disclosed
that Romero touched him on his butt in the pool. A.R. was
forensically interviewed a second time, but the ALJ
determined that the second interview was tainted by leading
• Both children began counseling with Potts, a therapist
at Sexual Abuse Response Associates specializing in trauma.
A.R. was having issues with nightmares, avoidance, shyness,
sleeplessness, and difficulty focusing. Potts testified that
she believed these symptoms were associated with past trauma.
• After fifteen sessions with Potts, A.R. drew a picture
with stick figures of himself and Romero in a pool and
described Romero touching him over his clothes. A.R. also
wrote a letter to Romero that began with "why did you
tuch me?" He also wrote that "in the pool grampa
dad did tuched me on butt with his finger it hert."
Similarly, he drew a picture of him and Romero in the pool
and wrote at the bottom "tuch me in swimming pool over
• K.P. engaged in play therapy with Potts, and during
the therapy K.P. used anatomically correct dolls in sexual
• After the allegations and commencement of the
investigation, Romero voluntarily relinquished his
guardianship of A.R.
14 Dr. Spiegle testified that A.R.'s shyness could be
attributed to encopresis. He further testified that if the
encopresis was brought on by emotional turmoil, that turmoil
could have derived from mother's inconsistent presence in
A.R.'s life. However, Dr. Spiegle also admitted that
sexual abuse could contribute to the onset of encopresis in a
15 The ALJ ultimately concluded that DHS "failed to
establish by a preponderance of the evidence that [Romero] is
a person responsible for incidents of child abuse or
neglect." In making that conclusion, the ALJ emphasized
• The medical examination of K.P. did not reveal the
cause of the bumpy rash and pain in her genital area,
although there was suspicion that they resulted from abuse.
• K.P. is very young and her forensic interview
reflected her "immaturity." Her accounts were
inconsistent and confusing.
• Regarding both children, there was no evidence that
any contact occurred with the requisite purpose of sexual
arousal, gratification, or abuse. §§ 18-3-401(4),
-405, C.R.S. 2017. . Regarding A.R., neither
forensic interview revealed any inappropriate touching and
his drawings were inconclusive, even with the testimony of
• Dr. Spiegle's testimony indicated that A.R.'s
encopresis could have been triggered by emotional issues with
mother, not Romero.
• The ALJ opined that "the evidence does not
preponderate on such an important issue as is presented
16 In the initial decision, the ALJ made no reference to the